APPEAL from the Circuit Court of Cook County; the Hon. RICHARD
L. CURRY, Judge, presiding.
MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:
Following a jury trial defendant, Raymond J. Bean, was found guilty on one count of delivery of a controlled substance, consisting of less than 30 grams of morphine (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1401(b)), and three counts of possession of a controlled substance; to-wit, more than 200 grams each of amphetamine and barbituric acid derivatives (barbiturates) (Ill. Rev. Stat. 1973, ch. 56 1/2, pars. 1402(a)(5) and (6)), and less than 200 grams of demerol (Ill. Rev. Stat. 1973, ch. 56 1/2, par. 1402(b)). He was sentenced to serve concurrent terms of 1 to 3 years on the delivery and possession of demerol offenses, and 4 to 12 years on the remaining two possession offenses.
On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) prejudicial error occurred during the State's cross-examination of a police informant; (3) the trial court erred in denying defendant's motion to sever the delivery and possession counts; (4) the trial court erred in allowing the police informant to testify as to the source of defendant's drugs; (5) the sentence imposed on the possession of amphetamine offense was improper; and (6) the maximum sentence of 12 years imposed on the two more serious possession counts was excessive. We affirm. The pertinent facts follow.
Martin J. Kehoe, an undercover Chicago police officer, testified that on January 11, 1974, he went to the Catfish Row Tavern at 22 West Elm Street, Chicago, Illinois. Kehoe was wearing a beard, long hair, and was dressed in faded jeans, a motorcycle jacket, and a pair of boots. Kehoe was accompanied by Mario Sadjek, who was not a member of the police department. Once inside, Sadjek introduced Kehoe to defendant. The three men then sat down at a corner table and Sadjek and defendant started discussing the price Sadjek would charge to recover defendant's impounded yacht for him.
Kehoe interrupted this conversation and asked defendant if he had the narcotics that Kehoe was supposed to buy from him. Defendant stated that he did not have it because he had been busy when he was at work and had been unable to get the "stuff." Kehoe displayed a large sum of money to defendant and "acted mad," because he would have to return to his friends without the narcotics he had promised for a party that night. Defendant said he was sorry that he did not bring it, but repeated that he did not have the chance to get it at work. He had been busy while at work and had not been left alone very much. However, he did tell Kehoe that he had "things" at his apartment, but Kehoe told him that he wasn't interested in pills. After defendant's fears that he might be dealing with a policeman were dismissed, defendant stated that he could get the narcotics at work that night and suggested they meet again on Monday to complete the transaction.
On Monday, January 14, shortly after 3 p.m., Kehoe and Sadjek drove to the tavern, accompanied by Officers Grogman and Haughey, who followed in a back-up vehicle. While Kehoe and Sadjek entered the tavern, Grogman and Haughey observed the scene from their unmarked car.
When Kehoe and Sadjek entered the tavern, defendant was seated at the bar. They conversed for a time, and the conversation finally turned to the drugs. Defendant said he would rather deal outside so the three men exited the tavern.
Once outside, defendant told Kehoe to get the drugs from defendant's car, parked across the street. Kehoe went to the car and removed an attache case from the front seat. As he recrossed Elm Street he looked in the case and counted ten boxes. Defendant was walking north at this time, so Kehoe caught up to him and handed him $1000 and apologized for not having the "full fifteen hundred." Kehoe offered to let defendant take some of the drugs back, but defendant responded that he trusted him. Kehoe then asked defendant if he was going to count the money, but defendant just "flipped the corners" and said, "I don't know when we will be able to deal again, because they know the stuff is missing already." Defendant then put the money in his pocket and the three men parted. As defendant walked away he was arrested by Officers Grogman and Haughey.
When questioned as to whether defendant had ever mentioned how he would obtain the narcotics to sell him, Kehoe stated that defendant indicated he "was the only person on duty in the pharmacy at night, and that he could get usually what he wanted when no one was around." Concerning Sadjek, Kehoe testified that he was helping the police because there were bribery charges pending against him and he wanted his cooperation made known to the State's Attorney. Also, Kehoe stated that it was Sadjek who mentioned the figure of $1500 as the price for the drugs during the January 11 conversation. Sadjek had originally told the police that the price was going to be $1625.
Officer Chris Grogman testified that when he arrested defendant he searched him and recovered the $1000 from his pocket. Defendant was informed of his rights and taken to the police station, where he was questioned. He told the police that he had other drugs at his apartment, as he was planning on opening a pharmacy. Defendant told police that he did not have receipts for these drugs, and he did not respond to Grogman's inquiry concerning where he had obtained them.
Based on this information, the police officers obtained a search warrant and conducted a search of defendant's apartment that same night. In all, they found approximately 274,000 pills in a variety of locations: under the clothes in the dresser drawers; under the bed; in juice jars and Tupperware bowls in the closet; in a black steamer trunk in the closet; and in spice bottles on the spice rack in the kitchen. In the kitchen they also found some hypodermic syringes and a hypodermic needle.
All of the goods seized, including the contents of the attache case as well as the evidence from defendant's apartment, were inventoried and transferred to either the evidence and property section or the police crime lab. The majority of the pills taken from the apartment were placed in five boxes and turned over to the evidence and property section. No charges were brought in connection with these pills because they were not controlled substances. A sixth box of pills was turned over to the crime lab, and these pills form the basis of the possession charges brought against defendant.
Each of the ten boxes found in defendant's attache case was found to contain ten syringes, each filled with a liquid. Gerald B. Pazin, a forensic chemist, testified that he performed tests on the liquid from these syringes and concluded that it was morphine. The total weight of the morphine was 1.5 grams.
Robert Boise, also a chemist, testified that he analyzed the contents of the pills recovered from defendant's apartment. He concluded that certain of the pills contained barbiturates, which weighed about 290 grams, and two other types of pills also contained barbiturates with a total weight of about 352 grams. Other pills contained amphetamine; however, no testimony concerning the weight of these pills was adduced. Lastly, Boise stated that certain pills contained what is commonly known as demerol. These pills were not weighed; however, Boise was sure that they weighed less than 100 grams.
Mario Sadjek, called as the court's witness, testified that he first met defendant in October of 1973. Later, in December, he saw him again at Catfish Row. They ran into each other a number of times thereafter at the tavern. At first, they usually discussed the collection business. Sadjek, who was 6'4 1/2" tall and weighed 375 pounds, indicated to defendant that it was sometimes necessary to use physical force in this business. They discussed the possibility of defendant hiring Sadjek to retrieve his yacht, which was being detained in Florida.
During these conversations Sadjek learned that defendant was a registered pharmacist. Sadjek asked defendant if he could get various drugs, including speed, which could act as appetite depressants. Defendant never delivered any of these drugs despite Sadjek's requests.
On a later occasion Sadjek asked if defendant could get any stronger drugs, specifically asking for morphine. Defendant indicated they could discuss this at a later time. On January 10, 1974, Sadjek arranged to buy morphine from defendant on the next day. Of his meetings with defendant, Sadjek stated that only three or four dealt with the subject of drugs.
During this period of time, Sadjek was out on bond pending a bribery charge. He testified that Officers Grogman and Haughey informed him that if he provided them with useful information, he might be able to get out of the trouble he was in. After Sadjek gave the officers information which did not check out, five charges were filed against him involving bad checks.
On January 9, 1974, Sadjek called Officer Grogman and told him of his encounters with defendant. The next day he told Grogman that he could set up a narcotics deal with defendant, involving a purchase of morphine and "speed" for $1625.
On January 11 Sadjek went to meet defendant at Catfish Row as arranged. Kehoe accompanied him, posing as Sadjek's brother. Defendant was not there at the arranged time of 3 p.m.; however, he arrived subsequently at approximately 4:10 p.m. Defendant did not have the narcotics, so it was agreed that the transaction would be completed on January 14 at the tavern. During the January 11 meeting defendant exhibited uncertainty about participating in the deal. He was skeptical about Sadjek's being a policeman. During the January 14 transaction defendant appeared fearful and reluctant to complete the deal.
Sadjek also testified that the police had told him to be "verbally strong" with defendant. Therefore, as they left the tavern on January 11 he told defendant "jokingly" that if he did not show up on Monday with the drugs, he (Sadjek) would break his legs. Defendant responded with a shaking gesture of his head.
Sadjek stated that after his cooperation with the police the charges against him relating to the bad checks were dropped; however, the bribery charge was not affected. Sadjek denied that his defense in a pending Federal case was insanity and stated that he had earlier told the police that defendant had told him the narcotics in his apartment were obtained in a robbery.
Skipper Andrade testified for the defense that he too was a pharmacist, and that he and defendant had agreed in late 1973 to open a pharmacy on the west side of Chicago. The two agreed that defendant would purchase drugs to stock the pharmacy while Andrade looked for a suitable location. During the latter part of 1973 Andrade was aware that defendant had started to acquire drugs for their projected pharmacy. Andrade stated that it was quite common for a pharmacist who intended to open a new business to accumulate and store drugs, similar to those for which defendant was on trial, in his home until the pharmacy actually opened. In fact, after defendant's arrest, Andrade obtained drugs and stored them at the home of his brother-in-law until he finally opened his own pharmacy in Maywood, Illinois. The drugs were stored in cartons, or boxes, in his brother-in-law's basement.
Defendant testified in his own behalf that he first met Sadjek at Catfish Row in October or November of 1973. Thereafter, he ran into Sadjek at the tavern on at least a dozen occasions.
Initially, when defendant would encounter Sadjek they would not discuss much of anything. Sadjek did learn that defendant was a pharmacist and that he was stockpiling drugs to open a pharmacy. He began asking defendant to get him some tinuate, an appetite depressant, and valium for his nerves. On at least six occasions Sadjek requested tinuate. Defendant would always tell him that he forgot it and that he would bring it the next time he came to the tavern. However, he never intended to supply these drugs to Sadjek, and in fact never did so.
During these same conversations defendant told Sadjek that he and a partner owned a boat that they chartered to help defray its expense, but that the boat had been confiscated in Florida because the renters had misused it. Sadjek said that he ran a collection agency and if hired by defendant he would get his boat back for him, even if it required the use of force.
Sadjek began to inquire if defendant had anything stronger than tinuate at his apartment. He wanted amphetamines, heroin, cocaine, or morphine. Defendant told Sadjek that he did have some morphine that was inventory for the new pharmacy. Sadjek stated that he would like to buy the morphine on about five different occasions. Defendant would always alibi because he had no intention of selling the morphine.
On January 11, 1974, defendant again saw Sadjek at the tavern, this time accompanied by a man who he introduced as his brother. This man was Officer Kehoe. Defendant told Sadjek that he had no morphine for them. They told him that they still wanted it, and that he should bring it on the following Monday, January 14. Defendant agreed to do so, hoping again to "stall them off."
As they were leaving the tavern Sadjek told defendant that if he did not show up with the drugs he would break his legs. Defendant believed him and feared him. He considered going to the police, but worried that if he did and "they can't prove anything, I am certainly going to get my legs broken if he [Sadjek] catches me later on."
When defendant returned to the tavern on Monday he was still in fear of Sadjek. Defendant did not bring the morphine into the tavern with him because he still hoped to get out of the deal. He went through with the sale to avoid getting his legs broken. Defendant did not discuss money with Kehoe and Sadjek and he did not even know how much money Kehoe gave him.
Concerning the drugs in his apartment, defendant stated that he got them from stores that had closed, from other pharmacies, and that he had received some free as samples from certain salesmen. He stated that he had originally had receipts for these drugs; however, he could no longer find them after the police had been through his apartment. If such receipts were confiscated by the police they were never returned to him, although all of his other personal records were returned.
Defendant testified that all the drugs he had in his apartment were necessary in order to stock a pharmacy. Occasionally he would give or sell drugs to friends out of his apartment; however, with the exception of the January 14 incident, he never dispensed any of the scheduled drugs which were the subject matter of this indictment. Defendant denied that he stored drugs in a spice rack. Rather, he stated that the spice rack only contained bottles filled with vitamin tablets.
Initially, defendant contends that he was not proved guilty beyond a reasonable doubt of any of the four offenses charged. Specifically, as to the delivery charge, defendant raised the affirmative defense of entrapment (Ill. Rev. Stat. 1973, ch. 38, par. 7-12), and he argues on appeal that the State failed to prove beyond a reasonable doubt that he was not entrapped by Mario Sadjek, the police informer (Ill. Rev. Stat. 1973, ch. 38, par. 3-2(b)). We disagree.
1 The law is clear that the defense of entrapment is not available where the police officers do no more than afford the defendant an opportunity to commit an offense which he was already predisposed to commit. (See People v. Dollen (1972), 53 Ill.2d 280, 290 N.E.2d 879; People v. Cazaux (1969), 119 Ill. App.2d 11, 254 N.E.2d 797; Ill. Rev. Stat. 1973, ch. 38, par. 7-12.) Whether entrapment exists is ordinarily a question for the jury's determination, which will not be disturbed on review unless the reviewing court concludes that entrapment existed as a matter of law. (People v. Gulley (1976), 36 Ill. App.3d 577, 344 N.E.2d 567.) We can reach no such conclusion in the instant case.
2 It is axiomatic that it is the jury's province, as the trier of fact, to draw inferences from the evidence and to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Mager (1976), 35 Ill. App.3d 306, 341 N.E.2d 389.) While we recognize that the State must be responsible for the actions of its informer when the defense of entrapment is raised (see People v. Strong (1961), 21 Ill.2d 320, 172 N.E.2d 765), there was evidence in this case which, if believed by the jury, was sufficient to prove beyond a reasonable doubt that defendant was predisposed to make this sale, and that Mario Sadjek merely provided him the opportunity to do so.
First of all, the evidence showed that Sadjek and defendant first entered discussions concerning drugs during December of 1973. While defendant claimed at least a dozen contacts with Sadjek, Sadjek testified that he only started discussing drugs with defendant just prior to Christmas of 1973. Sadjek stated he only had three or four such discussions with defendant, and two of these were the January 11 and 14 meetings. In light of this evidence we cannot agree with defendant that this was necessarily a case where defendant was pressured over a period of months to make this sale. Rather, the ...